EXHIBIT 2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") dated as of the 28th day
of March, 2002 among CUMULUS MEDIA INC., an Illinois corporation ("Cumulus
Media"), CUMULUS BROADCASTING, INC., a Nevada corporation ("Cumulus
Broadcasting"), DBBC, L.L.C., a limited liability company formed under the laws
of the State of Georgia ("Seller"), and SunTrust Bank, a Georgia banking
corporation (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, Cumulus Media and Seller, among others, have entered into that
certain Agreement and Plan of Merger, dated as of December 14, 2001 (the
"Agreement") as assigned pursuant to that certain Assignment and Assumption
dated March 22, 2002 (the "Assignment and Assumption"), under which Cumulus
Media assigned all of its rights under the Agreement to Cumulus Broadcasting and
Cumulus Broadcasting assumed all obligations of Cumulus Media under the
Agreement and pursuant to which (i) Seller has agreed to sell and Cumulus
Broadcasting has agreed to purchase substantially all of the assets and assume
certain liabilities related to the ownership and operation of commercial radio
broadcast station WRQQ (FM) and (ii) certain subsidiaries of Seller shall merge
into Cumulus Broadcasting, both upon and subject to the terms and conditions of
the Agreement;
WHEREAS, pursuant to the Agreement and as part of the transactions
contemplated thereby, the parties have agreed to enter into this Escrow
Agreement and deposit the Escrowed Shares (as defined below) with the Escrow
Agent as security for the payment of (i) the Negative Adjustment Amount, if any,
as provided in the Agreement, and (ii) any claims by Cumulus Broadcasting for
the indemnification as provided in Article 11 of the Agreement;
WHEREAS, the parties hereto desire to more specifically set forth their
rights and obligations with respect to the Escrow Fund and the distribution and
release thereof; and
WHEREAS, the execution and delivery of this Escrow Agreement is a
condition to the parties' obligations under the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties intending to be
legally bound hereby, agree as follows:
1. Definitions.
As used herein, capitalized terms not otherwise defined in this Escrow
Agreement shall have the meanings set forth in the Agreement.
2. Appointment of Escrow Agent.
Cumulus Broadcasting, Cumulus Media and Seller hereby appoint and
designate SunTrust Bank as the Escrow Agent for the purposes set forth herein,
and Escrow Agent hereby accepts such appointment.
3. Establishment of Escrow Account.
(a) On this date, Cumulus Media shall deliver (i) 640,433
shares of Cumulus Class A Common Stock, $.01 par value per
share (the "Cumulus Common Stock") (the "Indemnity Obligation
Escrowed Shares") and (ii) 10,000 shares of Cumulus Common
Stock (the "Adjustment Escrowed Shares"). The Indemnity
Obligation Escrowed Shares and the Adjustment Escrowed Shares,
totaling in the aggregate 650,433 shares of Cumulus Common
Stock (the "Escrowed Shares") shall be registered in the name
of the Seller and delivered by Cumulus Media to the Escrow
Agent. Simultaneously, Seller shall deliver to the Escrow
Agent stock powers executed in blank by the Seller sufficient
to permit the distribution of all or a portion of the Escrowed
Shares to Cumulus Broadcasting if required pursuant to
Sections 4(a)(ii), 4(b) or 4(c) hereof. References herein to
the Escrowed Shares shall be deemed to include the related
stock powers. An escrow account (the "Escrow Account") shall
be opened by the Escrow Agent at the office of the Escrow
Agent for such Escrowed Shares. The Escrow Agent shall hold
the Escrow Fund (as hereinafter defined) pursuant to the terms
of this Escrow Agreement.
(b) All redemption payments, stock dividends, stock
splits, cash dividends or other distributions of any kind made
in respect of the Escrowed Shares (collectively,
"Distributions") shall be delivered to the Escrow Agent and
shall be held by the Escrow Agent in the Escrow Account.
Cumulus Media agrees that in the event Cumulus Media divides
the Cumulus Common Stock into a greater number of shares,
Cumulus Media will deliver to the Escrow Agent certificates
for such additional shares that relate to the Escrowed Shares
and such shares will be deemed to constitute Escrowed Shares.
Distributions and any cash received from the disbursement of
Escrowed Shares or the sale or liquidation of other Permitted
Investments (as defined herein) as provided in paragraph (f)
below shall be subject to the provisions of this Escrow
Agreement to the same extent as the Escrowed Shares initially
deposited herewith. The Escrowed Shares and all Distributions
or other property held by the Escrow Agent hereunder are
hereinafter referred to as the "Escrow Fund" and all of the
foregoing comprising the Escrow Fund which are cash or cash
equivalents, are hereafter referred to as "Cash". The Seller
authorizes the Escrow Agent to use nominees for the
registration of securities and employ such depositories,
sub-custodians and its vaults as the Escrow Agent may deem
appropriate for the safekeeping of the Escrow Fund.
(c) At any time, Escrow Agent shall, upon written
direction from the Seller (a "Withdrawal Request"), transfer
to Seller from the Escrow Fund such number of the
Indemnification Escrowed Shares specified in the Withdrawal
Request upon payment by Seller to the Escrow Agent of
immediately available funds to be held in the Escrow Fund in
an amount equal to the product obtained by multiplying the
number of the Escrowed Shares withdrawn by $17.382. The funds
so transferred by Seller to the Escrow Agent will be held in
the Escrow Fund subject to claims made by Cumulus Broadcasting
for indemnification under Section 4 hereof.
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(d) Certificates representing Escrowed Shares and Cash
shall be held by the Escrow Agent. All voting rights
associated with the Escrowed Shares held in the Escrow Fund
shall be exercised by the Seller. Cumulus Media will take all
reasonable steps necessary to allow the exercise of such
rights.
(e) The Escrow Agent shall maintain a record with respect
to Seller setting forth (i) the name and address of Seller;
(ii) information pertaining to the purchase, sale or
liquidation of any Permitted Investments in the Escrow
Account; and (iii) all Distributions or other items added to
or taken from the Escrow Account. The Escrow Agent shall also
maintain a record setting forth the foregoing information on
an aggregate basis with respect to the Escrow Fund.
(f) All Cash constituting part of the Escrow Fund shall
be invested by the Escrow Agent. The Seller shall direct the
Escrow Agent in writing from time to time to invest the Cash
in investments of the type listed on Exhibit B attached hereto
("Permitted Investments") or, if such written direction has
not been provided, the Escrow Agent shall, until directed in
writing by the Seller to do otherwise, invest all of the Cash
in STI Classic US Treasury Securities Money Market Funds.
(g) Any loss incurred from an investment of the Escrow
Fund pursuant to this Agreement shall be borne by the Seller.
4. Release of the Escrow Fund.
The Escrow Fund is intended to provide a source of funds and property
for the satisfaction of certain amounts which may become payable to Cumulus
Broadcasting pursuant to (i) the purchase price adjustment based on the
determination of the Final Balance Sheet or (ii) Article 11 of the Agreement.
Accordingly, the Escrow Fund shall only be distributed or released as follows:
(a) Purchase Price Adjustment. Upon determination of the Final
Balance Sheet and the calculation of a Negative Adjustment
Amount or a Positive Adjustment Amount, as the case may be, as
provided in Article 3 of the Agreement, Cumulus Broadcasting
and Seller shall deliver to the Escrow Agent a written
instruction signed by both Cumulus Broadcasting and the Seller
("Adjustment Amount Instruction") to disburse the Adjustment
Escrowed Shares as follows:
(i) In the event there is a Positive Adjustment Amount,
the Adjustment Amount Instruction shall instruct the
Escrow Agent to distribute the number of Adjustment
Escrowed Shares specified in such Adjustment Amount
Instruction to Seller; or
(ii) In the event there is a Negative Adjustment Amount,
the Adjustment Amount Instruction shall instruct the
Escrow Agent to distribute (A) to Cumulus
Broadcasting, that number of Adjustment Escrowed
Shares (which number shall be specified in
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such Adjustment Amount Instruction) calculated by
dividing the Negative Adjustment Amount by $17.382,
and (B) to Seller, the balance, if any, of the
Adjustment Escrowed Shares.
(b) Indemnification Claims. At any time and from time to time
prior to the Distribution Date (as defined in paragraph (f)
below), if Cumulus Broadcasting makes a claim for
indemnification pursuant to and in accordance with, and
subject to the limitations in Article 11 of the Agreement (an
"Indemnification Claim"), Cumulus Broadcasting shall deliver
to the Escrow Agent and the Seller a written notice (an
"Indemnification Notice") setting forth a good faith estimate
of the maximum amount of such claim and which contains the
information specified in Section 11.3 of the Agreement. The
Escrow Agent shall not be responsible for determining whether
the Indemnification Notice complies with the requirements of
the Agreement. The Indemnification Claim shall be increased by
an amount equal to the reasonable costs of registering and
liquidating the Indemnification Obligation Escrowed Shares,
irrespective of when or if such registration is undertaken.
Cumulus Broadcasting shall also deliver to the Escrow Agent
written proof of delivery to the Seller of a copy of such
Indemnification Notice (which proof may consist of a photocopy
of the overnight courier receipt or the signed receipt if
delivered by hand). If the Escrow Agent has not received a
written objection to such Indemnification Claim from the
Seller within thirty (30) calendar days following the Escrow
Agent's receipt of such proof of delivery to the Seller, then
on the thirty-first (31st) calendar day following such receipt
the Escrow Agent shall, in accordance with the provisions of
paragraph (e) below, distribute from the Escrow Fund that
portion of the Escrow Fund which has a value equal to the
amount of such Indemnification Claim to Cumulus Broadcasting.
The number of Escrowed Shares being so distributed shall be
calculated by dividing the value of the Indemnification Claim
by $17.382.
(c) Disputes. If the Seller delivers to the Escrow Agent and
Cumulus Broadcasting a written objection (an "Indemnification
Dispute Notice") to any Indemnification Claim or portion
thereof within thirty (30) days following the Escrow Agent's
receipt of proof of delivery of such Indemnification Notice,
then, except as otherwise provided in paragraph (d) below, the
Escrow Agent shall not distribute to Cumulus Broadcasting any
portion of the Escrow Fund that is the subject of the
Indemnification Dispute Notice until the Escrow Agent receives
either (i) written instructions signed by the Seller and
Cumulus Broadcasting authorizing the distribution to Cumulus
Broadcasting of an amount from the Escrow Fund in respect of
the Indemnification Claim that is the subject of the
Indemnification Dispute Notice or (ii) a final decision of a
court of competent jurisdiction which is either nonappealable
or with respect to which the time for appeal has expired
without the filing of a timely appeal directing the
distribution to Cumulus Broadcasting of an amount from the
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Escrow Fund in respect of the Indemnification Claim that is
the subject of the Indemnification Dispute Notice. Upon
receipt of such written instructions or such final decision,
as the case may be, the Escrow Agent shall distribute to
Cumulus Broadcasting an amount from the Escrow Fund in respect
of the Indemnification Claim subject to dispute in accordance
with such written instructions or final decision. In the event
that the Seller is the prevailing party in whole or in part in
connection with any such dispute, the portion of the Escrow
Fund that was the subject of such Indemnification Dispute
Notice and that is not distributed to Cumulus Broadcasting as
provided in the immediately preceding sentence shall remain in
the Escrow Fund and shall be available to satisfy subsequent
Indemnification Claims until released as provided in paragraph
(f) below. Any Indemnification Dispute Notice shall describe
in reasonable detail the basis for any objection to the
matters set forth in the Indemnification Notice and the
portion of such Indemnification Claim (if less than all) which
is the subject of such Indemnification Dispute Notice.
(d) Partial Distribution. If any Indemnification Dispute Notice
includes an objection to only a portion of an Indemnification
Claim, the Escrow Agent shall promptly distribute to Cumulus
Broadcasting a number of Escrowed Shares equal to (A) that
portion of the Indemnification Claim for which there is no
objection, divided by (B) $17.382; provided that no such
partial release by the Escrow Agent shall terminate or
otherwise prejudice any rights of Cumulus Broadcasting with
respect to amounts claimed in any Indemnification Notice which
are in excess of the amounts so released.
(e) Manner of Distributions. All distributions of the Escrow Fund
shall be made as set forth in this paragraph (e).
(i) Distribution to Cumulus Broadcasting. Distributions
of Cash shall be made by wire transfer to an account
or accounts designated by Cumulus Broadcasting and
Distributions of Escrowed Shares to Cumulus
Broadcasting shall be made by delivery of
certificates representing the Escrowed Shares, and
stock powers executed in blank by Seller with respect
thereto, to the address of Cumulus Broadcasting set
forth in Section 10 hereof. In calculating the number
of Escrowed Shares to distribute, the Escrowed Shares
shall be valued at $17.382.
(ii) Distribution to Seller. Distributions of Cash shall
be made by wire transfer to an account of the Seller,
and Distributions of Escrowed Shares shall be made to
the address of Seller set forth in Section 10 hereof.
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(f) Release of Remaining Escrow Fund.
(i) Eighteen (18) months after the date of this Escrow
Agreement (the "Distribution Date"), the Escrow Agent
shall release to Seller the Escrow Fund (if any) as
of the Distribution Date, less all Unresolved Claims.
For purposes of this Agreement, the term "Unresolved
Claims" shall mean, as of the Distribution Date, the
aggregate amount of (A) the Adjustment Escrowed
Shares that have not been distributed, and (B) all
Indemnification Claims that are the subject of an
Indemnification Dispute Notice or that are otherwise
unsatisfied as of the Distribution Date, including
any Indemnification Claims for which an
Indemnification Notice has been delivered but for
which the thirty (30) day objection period has not
expired as of the Distribution Date. For purposes of
determining the number of shares to be held back
under this paragraph (f)(i), such Escrowed Shares
shall be valued at the Average Cumulus Stock Price.
(ii) Promptly upon the Escrow Agent's receipt of written
instructions signed by both of the Seller and Cumulus
Broadcasting, or a final determination of a court of
competent jurisdiction which is either nonappealable
or with respect to which the time for appeal has
expired without the filing of a timely appeal of any
Unresolved Claims that are the subject of an
Indemnification Dispute Notice, or upon the
expiration of the thirty (30) day objection period
for any Unresolved Claim for which no Indemnification
Dispute Notice has been delivered, the Escrow Agent
shall distribute to Cumulus Broadcasting that portion
of the Escrow Fund to be distributed to Cumulus
Broadcasting pursuant to such written instruction,
final determination or that portion of the Escrow
Fund equal in value to the amount of such Unresolved
Claim for which no Indemnification Dispute Notice has
been delivered, as the case may be, in each case in
accordance with the provisions of Section 4(e)(i)
hereof. After the resolution of all Unresolved
Claims, any remaining Escrow Fund not distributed to
Cumulus Broadcasting pursuant to the immediately
preceding sentence shall be released promptly
thereafter by the Escrow Agent to the Seller.
5. Escrow Agent's Fees.
The fees and expenses of the Escrow Agent shall be as set forth on
Exhibit C. The fees and expenses shall be paid by Cumulus Broadcasting. In case
of any disagreement or dispute arising under the provisions of this Escrow
Agreement, the Escrow Agent shall be entitled to be paid additional compensation
for its extraordinary services hereunder and shall be entitled to prompt
reimbursement for all costs and expenses incurred by reason of such disagreement
or dispute. Any additional compensation due pursuant to the preceding sentence
shall be paid by Cumulus Broadcasting.
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6. Termination.
This Agreement shall terminate upon the final distribution by Escrow
Agent of the Escrow Fund pursuant to the provisions of this Agreement. Any
termination of this Agreement shall not affect any of the obligations of Seller
or Cumulus Broadcasting under this Agreement arising prior to such termination,
including the obligation to pay Escrow Agent's fees pursuant to Section 5 above.
7. Escrow Agent.
(a) The duties and responsibilities of the Escrow Agent
shall be limited to those expressly set forth in this Escrow
Agreement. No implied duties of the Escrow Agent shall be read
into this Escrow Agreement and the Escrow Agent shall not be
subject to, or obliged to recognize any other agreement,
including, but not limited to the Agreement, between, or
direction or instruction of, any or all the parties hereto
even though reference thereto may be made herein.
(b) In the event all or any part of the Escrow Fund shall
be attached, garnished or levied upon pursuant to any court
order, or the delivery thereof shall be stayed or enjoined by
a court order, or any other order, judgment or decree shall be
made or entered by any court affecting the Escrow Fund, or any
part thereof, or any act of Escrow Agent, Escrow Agent is
hereby expressly authorized to obey and comply with all final
writs, orders, judgments or decrees so entered or issued by
any court; and, if Escrow Agent obeys or complies with such
writ, order, judgment or decree, it shall not be liable to
Seller, Cumulus Broadcasting or Cumulus Media or to any other
person by reason of such compliance.
(c) Escrow Agent shall not be liable to anyone for any
damages, losses or expenses incurred as a result of any act or
omission of Escrow Agent, unless such damages, losses or
expenses are caused by Escrow Agent's willful misconduct or
gross negligence. Accordingly, Escrow Agent shall not incur
any such liability with respect to (i) any action taken or
omitted in good faith upon the advice of counsel for Escrow
Agent given with respect to any question relating to the
duties and responsibilities of Escrow Agent under this
Agreement or (ii) any action taken or omitted in reliance upon
any instrument, including any written notice or instruction
provided for herein, not only as to its due execution by an
authorized person and as to the validity and effectiveness of
such instrument, but also as to the truth and accuracy of any
information contained therein that Escrow Agent shall in good
faith believe to be genuine, to have been signed by a proper
person or persons and to conform to the provisions of this
Agreement.
(d) The Escrow Agent shall not be responsible for the
sufficiency or accuracy, or the form, execution, validity or
genuineness, of documents or securities now or hereafter
deposited or received hereunder, or of any endorsement
thereon, or for any lack of endorsement thereon, or for any
description therein, nor shall it be responsible or liable in
any respect on account of the identity, authority or rights of
any person executing, depositing or delivering or purporting
to execute, deposit
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or deliver any such document, security or endorsement or this
Agreement, or on account of or by reason of forgeries, false
representations, or the exercise of its discretion in any
particular manner, nor shall the Escrow Agent be liable for
any mistake of fact or of law or any error of judgment, or for
any act or omission, except as a result of its gross
negligence or willful malfeasance. Unless otherwise required
by law, Escrow Agent is not authorized and shall not disclose
the name, address, or security positions of the parties or the
securities held hereunder in response to requests concerning
shareholder communications under Section 14 of the Exchange
Act, the rules and regulations thereunder, and any similar
statute, regulation, or rule in effect from time to time.
Under no circumstances shall Escrow Agent be liable for any
general or consequential damages or damages caused, in whole
or in part, by the action or inaction of Seller, Cumulus
Broadcasting or Cumulus Media or any of their respective
agents or employees. Escrow Agent shall not be liable for any
damage, loss, liability, or delay caused by accidents,
strikes, fire, flood, war, riot, equipment breakdown,
electrical or mechanical failure, acts of God or any cause
which is reasonably unavoidable or beyond its reasonable
control.
(e) The Escrow Agent may consult with legal counsel of
its own choosing and shall be fully protected in acting or
refraining from acting in good faith and in accordance with
the opinion of such counsel.
(f) In the event of a dispute between the parties hereto
sufficient in the discretion of Escrow Agent to justify its
doing so, Escrow Agent shall be entitled to tender the Escrow
Fund into the registry or custody of any court of competent
jurisdiction, to initiate such legal proceedings as it deems
appropriate, and thereupon to be discharged from all further
duties and liabilities under this Agreement. Any such legal
action may be brought in any such court as Escrow Agent shall
determine to have jurisdiction over the Escrow Fund. The
filing of any such legal proceedings shall not deprive Escrow
Agent of its compensation hereunder earned prior to such
filing.
8. Indemnification of Escrow Agent.
Seller and Cumulus Broadcasting hereby agree jointly and severally to
protect, defend, indemnify and hold harmless the Escrow Agent, its officers,
directors, agents and employees from and against any and all costs, losses,
claims, damages, disbursements, liabilities and expenses, including reasonable
costs of investigation, court costs and attorney's fees, which may be imposed
upon or incurred by Escrow Agent in connection with its acceptance of, or
appointment as, Escrow Agent hereunder, or in connection with the performance of
its duties hereunder, including any litigation arising out of this Escrow
Agreement or involving the subject matter hereof; provided, however, that said
indemnity shall not cover costs, losses, claims, damages, disbursements,
liabilities and expenses arising out of Escrow Agent's willful misconduct or
gross negligence. This indemnification shall survive the termination of this
Escrow Agreement or the resignation or removal of the Escrow Agent. Without
affecting their joint and several indemnification liability to the Escrow Agent
under this Section 8, Seller and Cumulus Broadcasting agree as among themselves
that any such indemnification liability shall
8
be allocated among them on a fair and equitable basis reflecting the merits of
their respective positions and the responsibility of each of them for the
controversy or other circumstances with respect to which indemnification is
required.
9. Resignation of Escrow Agent.
It is understood that the Escrow Agent reserves the right to resign as
Escrow Agent at any time by giving written notice of its resignation, specifying
the effective date thereof, to each other party hereto. Within thirty (30) days
after receiving the aforesaid notice. Cumulus Broadcasting shall appoint a
successor Escrow Agent to which the Escrow Agent may distribute the property
then held hereunder, less its fees, costs and expenses (including counsel fees
and expenses) which may remain unpaid at that time. If a successor Escrow Agent
has not been appointed and has not accepted such appointment by the end of such
thirty (30)-day period, the Escrow Agent may apply to a court of competent
jurisdiction for the appointment of a successor Escrow Agent and the fees, costs
and expenses (including reasonable counsel fees and expenses) which it incurs in
connection with such a proceeding shall be payable by Cumulus Broadcasting.
10. Notices.
All notices provided for hereunder shall be in writing (including
facsimile transmission) and shall be deemed to be given: (a) when delivered to
the individual, or to an officer of the company, to which the notice is
directed; or (b) when delivered by an overnight delivery service (including
Federal Express) with receipt acknowledged and with all charges prepaid by the
sender addressed as provided in this Section; or (c) when delivered by facsimile
communications equipment. Notices shall be directed as follows:
(i) If to Cumulus Media, to:
Cumulus Media Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx 00, Xxxxx 00
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxx, Xx.
Phone: (000) 000-0000
Fax: (000) 000-0000
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Copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 404-581-8330
(ii) If to Cumulus Broadcasting, to:
Cumulus Broadcasting, Inc.
0000 Xxxxxxxx Xxxx
Building 14, 14th Floor
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telephone: 000-000-0000
Telecopier: 000-000-0000
Copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 404-581-8330
(iii) If to Seller, to:
DBBC, L.L.C.
00 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
Copy to:
Dickstein, Shapiro, Xxxxx & Xxxxxxxx, LLP
0000 X Xxxxxx, X. X.
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxx J. Paper
Phone: (000) 000-0000
Fax: (000) 000-0000
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(iv) If to Escrow Agent, to:
SunTrust Bank
00 Xxxx Xxxxx, 00(xx) Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
or at such other place or places or to such person or persons as shall be
designated by notice by any party hereto.
11. Entire Agreement; Binding Effect.
This Escrow Agreement and matters and agreements referred to herein
contain the entire understanding by and among the parties hereto and shall be
binding upon and shall inure to the benefit of the parties hereto, and their
respective successors and assigns.
12. Modification and Assignment.
None of the terms or conditions of this Agreement may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly
signed by the parties hereto. This Escrow Agreement may not be assigned by any
party except with the prior written consent of the other parties.
13. Enforceability.
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under Illinois law, but
if any provision shall be prohibited by or be invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
14. Governing Law.
This Agreement shall be construed, enforced and administered in
accordance with the laws of the State of Georgia.
15. Headings Descriptive.
The headings of the several sections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Escrow Agreement.
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16. Business Day.
Business day shall mean a day on which commercial banks in Atlanta,
Georgia are open for the general transaction of business. If any action or time
for performance pursuant to this Agreement is to occur on any Saturday, Sunday
or holiday, such time for action or performance shall be extended to the next
Business Day.
17. Monthly Statements.
The Escrow Agent shall provide Seller and Cumulus Broadcasting with
monthly statements describing purchases, sales, and disbursements made for the
Escrow Fund.
18. Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed an original, but all of which shall
together constitute one and the same instrument.
[SIGNATURES APPEAR ON THE NEXT PAGE]
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IN WITNESS WHEREOF, Cumulus Broadcasting, Cumulus Media, Seller and
Escrow Agent have caused this Agreement to be executed by their authorized
representatives as of the date first above written.
CUMULUS MEDIA INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: Executive Vice President and
----------------------------------
Chief Financial Officer
----------------------------------
CUMULUS BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: Executive Vice President and
----------------------------------
Chief Financial Officer
----------------------------------
DBBC, L.L.C.
By: /s/ Xxxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
----------------------------------
Title: President and Manager
----------------------------------
SUNTRUST BANK
By. /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------------
Title: Assistant Vice President
----------------------------------
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EXHIBIT A
ADJUSTMENT AMOUNT DIRECTION
The Escrow Agent is hereby authorized and directed to make the
following Distribution(s) pursuant to Section 4(a) of this Escrow Agreement:
[TO BE USED IF THERE IS A POSITIVE PURCHASE PRICE ADJUSTMENT:]
To Seller: All of the Adjustment Escrowed Shares.
[TO BE USED IF THERE IS A NEGATIVE PURCHASE PRICE ADJUSTMENT:]
To Cumulus Broadcasting: [CUMULUS BROADCASTING TO INSERT THE NUMBER OF
ADJUSTMENT ESCROWED SHARES CALCULATED BY DIVIDING THE
NEGATIVE ADJUSTMENT AMOUNT BY THE AVERAGE CUMULUS
STOCK PRICE, UP TO THE TOTAL NUMBER OF ADJUSTMENT
ESCROWED SHARES] of the Adjustment Escrowed Shares.
To the Seller: The balance, if any, of the Adjustment Escrowed
Shares
Cumulus Broadcasting and Seller acknowledge and agree that the Escrow Agent may
rely upon this Exhibit A to the Escrow Agreement in accordance with Sections
7(c) and 8 of the Escrow Agreement.
[SIGNATURES APPEAR ON THE NEXT PAGE]
EXHIBIT A
CUMULUS BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: Executive Vice President and
----------------------------------
Chief Financial Officer
----------------------------------
DBBC, L.L.C.
By: /s/ Xxxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
----------------------------------
Title: President and Manager
----------------------------------
EXHIBIT B
PERMITTED INVESTMENTS
1. STI Classic US Treasury Securities Money Market Funds;
2. Obligations issued or guaranteed by the United States of America or any
agency or instrumentality thereof having a maturity of less than six
(6) months;
3. Commercial paper at the time of investment rated A-1 by Standard &
Poor's Corporation or Prime-1 by Xxxxx'x Investors Service, Inc. and in
any case having a maturity of less than six (6) months;
4. Obligations issued by any state or municipality of the United States
having a maturity of less than six (6) months; or
5. Certificates of deposit issued by a commercial bank whose long-term
certificates of deposit have a rating of A or better by Xxxxx'x
Investors Service or Standard & Poor's Corporation.
EXHIBIT B
EXHIBIT C
ESCROW FEES AND EXPENSES
The annual fee of $3,000.00 for administering this Escrow Agreement is payable
in advance at the time of Closing and if applicable, will be invoiced each year
to the appropriate party(ies) on the anniversary date of the Closing of the
Escrow Agreement.
Out-of-pocket expenses such as, but not limited to postage, courier, overnight
mail, insurance, money wire transfer, long distance telephone charges,
facsimile, stationery, travel, legal or accounting, etc., will be billed at
cost.
These fees to do not include extraordinary services which will be priced
according to time and scope of duties. The fees shall be deemed earned in full
upon receipt by the Escrow Agent, and no portion shall be refundable for any
reason, including without limitation, termination of the Escrow Agreement.
It is acknowledged that the schedule of fees shown above are acceptable for the
services mutually agreed upon.
Note: This fee schedule is based on the assumption that the escrowed funds will
be invested in STI Classic US Treasury Securities Money Market Funds.
EXHIBIT C
